Colorado: 300 Days of Sunshine Annually, Yet There’s No Sunny Side of the Street

On June 1, 2016, Gov. John Hickenlooper and others kicked off a statewide effort called “Raise the Bar, Protect our Constitution,” a campaign to make it harder to amend the Colorado Constitution. [Source: The Denver Post]

Guest post by Philip Doe*

Not long ago, the Governor of Colorado, John Hickenlooper, held a press conference kicking off a campaign to stop the state’s constitution from being, in his words, a “dumping ground” for special interest legislation. He apparently wants to accomplish this before Hillary makes him her Secretary of Interior or Commerce Secretary. He fits the mold at Commerce better, for as Eugene McCarthy once observed the only real quality a Commerce Secretary needs is the ability to wear a boutonniere. This he could probably be taught.

Secretary of Interior is a little dicier, but another Coloradan, Ken Salazar, held the job for Obama, and he is now Hillary’s new chief of staff for vetting people seeking jobs in her administration. With Ken doing the vetting, mediocrity is assured, for it hates competition.

At Interior, Hick could probably mimic Ken’s achievements in science since they both cling to the religious belief that fracking is safe. Ken is rumored to be gearing up to replace the term limited Hick as governor, thus in a world where the more things change, the more they stay the same, the state’s position that fracking is safe and belongs in people’s back yards would still carry the governor’s seal of approval.

But what Hickenlooper was really announcing at his press conference was the opposite of what he was saying. He was, in fact, anointing a new attempt by ruling elites to take away the people’s right to legislate using the initiative. And he was sanctifying their use of the state constitution as a dumping ground for their own special interest legislation.

Make no mistake, this was but the latest of many attempts to wrest any direct governmental decision making from the people, but it might have been the first time a sitting governor in Colorado had filled the role of bag man.

This time, too, the moneyed interests were on top of their game having spent well over a year and thousands of dollars in preparing the public to vote against itself with a campaign called Building a Better Colorado, BBCO. It is an offshoot of Colorado Concern, which has in its bylaws that you should be at least a CEO to belong, college presidents preferred, and is by invitation only.

Playing a shell game to avoid Colorado’s campaign spending and transparency laws, yet another new organization has been set up to carry out the elite’s designs on the constitution while keeping transparency at bay. It calls itself Raise the Bar and will manage the assault on the people’s right of initiative that BBCO and Colorado Concern designed.

Colorado Concern, the queen ant of these activities, was the organization instrumental in getting legislation passed last year that requires a two sentence financial “analysis” be printed on the title page of the petitions people must sign before an initiative can be placed on the ballot. The analysis deals only with the impact on state revenues, not with any economic benefits to public wellbeing or the environment.

The first example of its implementation is a citizen’s initiative called ColoradoCare. It would mandate a modest form of single payer health insurance. Because of the new financial “analysis” requirement, the initiative’s first sentence asks, “Shall state taxes be increased $25 billion annually in the first full fiscal year…”. Not only is this statement alarming, it is not an analysis, it only tells what the costs to the state would be. Moreover, It does not disclose that this program covers everyone, unlike the Accordable Care Act, or Obama Care, at less cost, and by 2019 would save Coloradans $4.5 billion in out of pocket expenses. These calculations are of course contested, and the Governor and the insurance providers are opposed. Over 156,000 Colorado residents signed petitions to get the initiative on the November ballot.

The Raise the Bar’s initiative required no financial analysis on its title page since it would cost the state nothing in revenues. It would however deal, perhaps, a lethal blow to the peoples right to legislate by means of the initiative. Their chief claim against we-the-people is that we have gone mad with power and are destroying the constitution by adding new amendments to it, willy-nilly. As a result the state constitution isn’t as lovely as it could be if it were treated as a religious relic.

Their nostrums for relic preservation are basically two.

Raise the Bar would amend the constitution by increasing the votes needed for approval from a simple majority to a super majority of 55 percent. They would make an exception in the case of repealing constitutional measures. In those cases a simple majority would still apply, an exception that defies explanation if the concept of equal treatment is the yardstick, or unless repealing TABOR, The Taxpayers Bill of Rights, still fills their sugar-plum dreams.

Part of their advertising campaign is built upon the lament that most initiatives are proposed as constitutional amendments rather than statutory laws. But here again the fault is with the ruling elite, for it is they that will not give up their right to change or repeal any statute generated by a citizen initiative the year following its passage. The people know this, and they know the huge effort it takes to get an initiative on the ballot could be nullified the following year by an unfriendly legislature beholding to special interests.

A promise from the legislature that it would not fiddle with a statutory initiative for five to ten years might do much to encourage this avenue of public law making. So would lowering the bar for signatures needed to get a statutory initiative on the ballot, say to half of the constitutional requirement. These changes which could be implemented by the legislature are nowhere on the horizon, though their have been attempts to pass a 5-year hands-off policy on citizen generated statutes in the past. But, of course, it is always easier to just blame the people, especially if improving the right to direct democratic action is not the objective.

It is very important we recognize the people have very little voice in government, money rules. Raise the Bar would stifle it even more, as is its intent.

More punitive is the measure’s requirement that 2 percent of the registered voters in each of the state’s 35 senate districts would have to give their approval before a proposed constitutional amendment could even get on the ballot. This requirement destroys the concept of one person, one vote and replaces it with some primitive notion of geography as talisman. We do not require statewide office seeker to first get the signatures of 2 percent of the voters in each senate district before getting on the ballot, nor should we. The same logic should apply to the right of initiative. The time to vote on initiatives and candidates is on election-day, after there has been a public discussion of the issues and the candidates, not before. In fact this provision is nothing but a clumsy attempt to pit city people against rural people using the fiction that we share no common ground.

Raise the Bar’s cheer leaders and monetary backers are a who’s who of Grand Poobahs in the state. Included are the Denver chamber of commerce, CEO’s of the largest corporate interests in the state, with the oil and gas industry prominent in its advocacy. and a royal mix of political elites, including former governor Dick Lamm, who seems to have forgotten his political career owes much to the initiative, for he made his name by rallying the people against the monetary and environmental costs of the 1976 Winter Olympics in Colorado using the initiative process.

Raise the Bar has hired two former state legislators from opposing parties, Greg Brophy and Dan Gibbs, to act as initiative co-sponsors as required by law and give the proposal the veneer of being of-the-people.

Brophy gave up his job as chief of staff to U.S. Representative Ken Buck, one of the more reactionary members of the House, to become co-sponsor. A man of rare clairvoyance, Brophy claimed recently on a Denver radio show that Colorado wildfires might be the acts of terrorists. This family photo with all members holding military-type weapons gives new meaning to the concept of a family outing.

2011 family photo of State Sen. Greg Brophy (R-Wray), who has announced a run for Colorado governor. [Photo via Greg Brophy’s Facebook page]

Gibbs is less of a known quantity, though he was the darling of the neo-liberals when at the legislature, and early on worked for Senator Mark Udall. As a state legislator, he worked tirelessly to funnel millions of taxpayer dollars into fighting the pine beetle infestation in his mountain district. He was less forceful in identifying climate change as the cause of the infestation.

A few words about the history of the initiative are instructive at this point. The people added it to the constitution in 1910 as Article V, the Right of Initiative and Referendum. It was the age of Wall Street trusts and corporate monopolies and was added as a defense against unresponsive or corrupt government. The courts have described it as a first right, superior to even the legislature’s right to make law. Even SCOTUS has twice had to warn the elites to keep their hands off. But the elites are addicted to buying power and apparently hate sharing. To many, 2016 feels a lot like 1910.

Article V’s right of referendum has already been dealt a death-blow by the legislature. The referendum gives the people the right to vote on any legislation passed in any legislative session, but the legislator has taken to adding the “Safety Clause” to most legislation, claiming the legislation is necessary for the immediate safety of the people. By so doing, they deny the public the right of debate and approval. For example, the legislature attached the safety clause to their last minute 30 percent pay increase in 2015, thus making a referendum vote by the people on their pay increase impossible.

The following are but a few of the measures in our state constitution that have been added by citizen initiative.

The right of Home Rule: this provision makes health and safety protections passed in home rule cities superior to those of the state when found in conflict. Both the courts and the legislature have made home rule a nullity with regard to oil wells in people’s back yard. As a result a citizen’s initiative, initiative 75, to restore the constitutional guarantee of home rule may be on the ballot in November to restore a right that is already there, but which a corrupt power structure has destroyed.

The legalization of marijuana: Legalization has created some local consternation, but the right of home rule can still be applied on this issue, unlike oil and gas drilling in backyards, and sales within city limits can be denied. Most importantly, legalization recognizes the obvious by decriminalizing the leisure habits of many citizens and eliminating imbecilic law enforcement and incarceration costs.

Established Greater Outdoor Colorado, GOCO: it mandates allocating funds from the state lottery for the acquisition and protection of public land. It is perhaps the initiative processes crowning achievement, supported by the vast majority of citizens. Still the initiative’s mandate has been ignored by the legislature, which, when in a fiscal bind, has used the GOCO money as its private piggy bank. As a result, the people have had to place follow up initiatives on the ballot telling the legislature GOCO is not their private piggy bank.

Term limits, our open meetings and open records laws, as well as our ethics laws for public officials, all owe their existence to the citizen initiative. With the exception of term limits, they are all working less forcefully than the public had hoped, but it is safe to say that none of the above would even exist if the public did not have the right to make law by means of the initiative. Should not every citizen be cheering our collective wisdom, and should not every citizen be fiercely condemning the designs of the few to further impoverish our right to participate in government?

The handful of initiatives noted above are but a few of the roughly 150 constitutional amendments that have been passed in the last 106 years of the initiative’s existence in our constitution. It is important to note that less than half of these, less than one a year, are the result of citizen sponsored initiatives. More than half have come from the legislature as referred amendments to the constitution, which the public must also vote to approve. With these facts in mind how is it possible to defend the argument that a salivating mob is destroying the constitution with appetite and ignorance?

Additionally, the legislature introduces over 600 bills each year. Maybe half become law. The citizens aren’t abusing their first right to legislate, anything but by this comparison, and the shrill alarms set off by the ruling elite in this election season are all false.

If the interests behind Raise the Bar were truly committed to making the initiative process better, many reforms could be made as I’ve suggested in previous articles. But none would be more important to this effort than authorizing electronic petition gathering. This would not only modernize the process, but decrease costs for both the state and citizen law makers.

Knowledge of electricity has been around since at least Thales. Isn’t it time we used some of that knowledge to advance the people’s strongest protection against unresponsive or corrupt government?

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*Phil Doe, Be The Change, has been fighting for Colorado’s water for most of his adult life. He served as Bureau Chief and Environmental Compliance Officer for the Bureau of Reclamation in the Department of Interior and was featured as a whistleblower on 60 Minutes. A former professor of English literature, he has published op-ed features in Rocky Mountain News, DenverPost, Colorado Central Magazine, and Counterpunch. His past grassroots efforts opposed the Animas-La Plata water project in southwest Colorado. He is a registered citizen lobbyist at the State Capitol and testifies at the federal and state legislative level on natural resource issues. He serves on the board of the grassroots group, Be the Change, and directs their environmental issues program, with a current focus on horizontal hydrofracking.